Passenger Transportation and Travel Services

The six quarters

In each of the six quarters, orders from appropriate governmental authorities limiting commerce, travel or group meetings were in force on the functions of this industry, and in each quarter the operation of a typical employer was partially suspended because of them. The Service's position that this industry's employers "were not subject to" qualifying orders, or that their losses reflect a "reduction in demand" rather than an order, is answered quarter by quarter below from the instruments' own texts. The third quarter of 2021 is treated at length because the Service's position there is that nothing was in force; the record shows a quarter in which the federal conveyance order governed every vehicle in the industry, the Conditional Sailing Order governed every cruise product, the entry and border regimes governed every inbound traveler, Hawaii and Kansas quarantined travelers, and the industry's largest contract season, the 2021-22 school year, opened under the infection-prevention orders of universal masking, quarantine and driver testing in the largest States.

The second quarter of 2020 (April 1 through June 30, 2020)

On April 1, 2020 every State's schools were closed by order or directive and every contracted route was idle (the fifty States and the District, above); forty-two States and territories, the District among them, confined their residents to essential travel;⁴⁷ traveler quarantines bound arrivals in Hawaii, Alaska, Rhode Island, Florida, Texas, South Carolina, Delaware, Vermont, Montana, Kentucky, West Virginia, Oklahoma, New Mexico, Arkansas, North Dakota and Kansas, joined during April by Maine, Arizona, Utah, Idaho and Wyoming and on June 1 by Nebraska's quarantine of international arrivals;⁴⁸ gatherings were banned or capped in every State but South Dakota; casinos and convention centers were closed; the No Sail Order, the entry proclamations, the land-border notifications, the visa suspension and the DHS flight funneling governed the border;⁴⁹ the FFCRA mandate bound every employer under 500 employees from April 1;⁵⁰ New York City banned pooled rides from March 17 and New York required a face covering of every passenger and operator on every for-hire and public conveyance from April 17, New Jersey capped private carriers at fifty percent with face coverings and back-door boarding wherever feasible (EO 125 ¶ 1.d) from April 13, Connecticut required face coverings of every taxi, livery and transit passenger from April 20 and the District of taxi and ride-share passengers from April 9, exposure-control requirements imposed on the carrier and the ride itself;⁵¹ motor-vehicle offices in at least twenty States and the District were closed or appointment-only;⁵² the Coast Guard closed every Regional Examination Center March 19 and restricted crew movements under 33 C.F.R. § 160.216 and Captain of the Port orders, as MSIB 02-20 records; the FAA's SFAR 118 took effect April 30 and the DOT's Order 2020-4-2 fixed the airline network from April 7.⁵³ By June 30, 2020, schools were closed to the end of the year everywhere; summer camps and summer school were restricted; the New York-New Jersey-Connecticut travel advisory took effect June 25 with Hawaii, Alaska, Vermont, Maine, Kansas and New Mexico quarantines in force; gathering caps of ten to fifty held in most States; and the No Sail Order had been extended.⁵⁴

CH: every charter customer was a banned gathering; the spring trip, tournament, prom, graduation and festival season of 2020 was cancelled by the gathering bans and school closures of every State, and the casino and convention runs by the casino and convention-center closures. SB: the school closures idled every home-to-school route in the country for the whole quarter; New Jersey's, Pennsylvania's and Connecticut's payment instruments and Oklahoma's support-staff order were enacted because the routes were idle, each conditioning payment on retaining the workforce for a service that was not being rendered.⁵⁵ LM: the stay-at-home orders removed the passenger from the street; the pooled-ride ban, capacity caps and face-covering orders, the exposure controls placed on the ride, fixed how the fare that remained was carried; the airline network ran under the DOT minimum-service order at a fraction of schedule and every arriving international passenger was funneled or barred. AV: SFAR 118 and Exemption 18509A record that airmen could not complete their checking and training, and the flight school's students were under stay-at-home orders; the fixed-base operator's airline customers flew the DOT-ordered minimum. FR: the Ocracoke ferries barred visitors, Cape May-Lewes carried no foot passengers, the Anacortes-Sidney route was closed by the border notices, Alaska screened every boarding passenger under Mandates 010 and 012, and the Connecticut River ferries did not run until June 20.⁵⁶ TA: the No Sail Order removed the cruise product, the proclamations and visa suspension the inbound and foreign product, the traveler quarantines the domestic destination, and the stay-at-home orders the traveler. MT and OP: yards and dispatch offices were workplaces under closure and telework orders, with the motor-vehicle offices that register the fleet closed. HR: commercial-license testing stopped in the closed motor-vehicle offices; the FMCSA waiver as recited by the States, the Coast Guard's examination-center closures and the FAA's SFAR 118 exist because the credentialing functions could not be performed. WF: the FFCRA mandate and the school closures removed workers from shifts. CB: every counterparty was under an order.

The operation of a typical employer in this industry was partially suspended during the second quarter of 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings. The suspension was not partial in the sense of marginal. For the charter, school-route and cruise-transfer functions it was complete for the whole quarter; for the tour and travel-agency functions every cruise, foreign, inbound, cross-border and quarantine-State product was removed for the whole quarter; and for the taxi, shuttle, ferry and flight-training functions the operation the orders permitted was a capped, masked, screened and appointment-bound fraction of the operation those orders found in March 2020.

The third quarter of 2020 (July 1 through September 30, 2020)

On July 1, 2020, New York's EO 205 quarantine (from June 25, with a civil penalty up to $10,000), Connecticut's tri-State advisory, New Mexico's universal quarantine (from July 1) and the Hawaii, Alaska, Vermont, Maine, Kansas and Rhode Island regimes governed the domestic traveler, and during the quarter Chicago's Emergency Travel Order (from July 6), Connecticut's mandatory quarantine with $1,000 penalties (from July 24), the District's Mayor's Order 2020-081 (from July 27) and Massachusetts's Order No. 45 (from August 1) joined them;⁵⁷ gathering caps held in every State but South Dakota, Florida (Phase 2), Missouri and Wisconsin; fall school plans issued remote or hybrid instruction as mandatory or presumptive in California, Illinois, New York, New Jersey, Washington, Oregon, Kentucky, New Mexico, Nevada, Delaware, Maryland, Virginia and the District, with bus capacity and face-covering rules in Louisiana, Nevada, Delaware, Indiana, Utah, South Carolina and Minnesota;⁵⁸ the statewide face-covering orders of thirty States, workplace infection-prevention and exposure-control requirements that reached taxis, ride-shares and transit by name, took effect across the quarter (Colorado July 17, Indiana July 27, Minnesota July 24, Wisconsin August 1, Ohio July 23, Texas July 3);⁵⁹ the DOT service obligations ran to September 30; SFAR 118-1 governed airmen; the No Sail Order was extended July 16 and September 30; the proclamations, border notices (renewed July 22, August 21, September 23) and visa regime continued; and the FFCRA mandate ran the whole quarter.⁶⁰ By September 30, 2020, fall instruction was remote or hybrid under order in the large States; school face-covering and bus rules were in force; the No Sail Order ran to October 31; the FMCSA waiver as recited by the States had been extended September 18 to December 31; New Jersey's MVC extensions ran to December 31; and Florida's Phase 3 order of September 25 had lifted that State's caps while barring local fines on individuals.⁶¹

CH: the summer tour and festival season ran into gathering caps of ten to fifty in most States and into the quarantines that made an interstate motorcoach tour a fourteen-day quarantine for its passengers on arrival or return in New York, Connecticut, New Mexico, Massachusetts, Hawaii, Alaska, Vermont, Maine, Kansas, Chicago and the District; casinos reopened at fifteen to fifty percent and convention centers did not reopen. SB: the 2020-21 school year opened remote or hybrid in the largest States by order, so that home-to-school routes ran at a fraction of rosters or not at all, and every route that ran carried masked children in capped buses under the State rules. LM: the airport-transfer fleets carried the traffic the DOT order and the quarantines left; the face-covering orders of thirty States fixed the conduct of every ride and made the driver the enforcer of an exposure control. AV: SFAR 118-1 and the exemptions continued; the flight school's checkrides ran on extensions. FR: the Ocracoke passenger-ferry season was cancelled April 28 for the year; Puget Sound sailings were reduced; the Canadian route stayed closed. TA: no cruise sailed; the proclamations barred the European, British, Irish, Brazilian, Chinese and Iranian markets; the land borders excluded "tourism purposes"; the quarantines made the domestic package a quarantine. HR: the FMCSA waiver chain and the State extensions ran because testing could not be completed; the New Jersey MVC did not reopen to the public until July 7. WF and OP: the FFCRA mandate and the school and child-care regimes governed staffing; offices reopened under capped occupancy. CB: every counterparty remained under an order.

The operation of a typical employer in this industry was partially suspended during the third quarter of 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings. The quarter's orders were reopening orders in caption and limiting orders in operation: an order that permits a coach to carry a capped and masked group to a venue at twenty-five percent capacity, or a school bus to carry a hybrid roster, is an order that limits the commerce, and the operation it permits is the operation the order defines.

The fourth quarter of 2020 (October 1 through December 31, 2020)

SFAR 118-2 took effect October 1; the Conditional Sailing Order replaced the No Sail Order October 30, keeping passenger cruising closed pending crew testing and simulated voyages; the New York, Connecticut, New Mexico, Massachusetts, District, Chicago, Hawaii, Alaska and Kansas quarantine regimes continued; the airborne-transmission control of face coverings on conveyances, an exposure control on the ride and its operator, was required by State order in thirty-three States; the land borders and proclamations continued.⁶² The winter resurgence re-tightened the layer: Pennsylvania's Travel Mitigation Order (November 20) required a negative test or quarantine of every person entering or returning; New Hampshire's Emergency Order #72 made its travel guidance mandatory for "all New Hampshire residents and travelers/visitors" (November 15); Vermont suspended its county map and imposed universal quarantine (November 10); Connecticut's EO 9S quarantined arrivals from every State but New York, New Jersey and Rhode Island (December 19); Maryland's December 17 orders required a test or quarantine of every traveler from non-neighboring States; Washington quarantined arrivals from variant countries (December 21); New York's EO 205.2 imposed a pre-departure test and three-day quarantine (November 4) and New York City's EEO 159 made hotels refuse guests without the traveler form.⁶³ Gathering caps re-tightened in at least thirty States; high schools went remote in Michigan (November 18) and all Kentucky schools (November 23); New Mexico reset to remote; Ohio, North Carolina and Virginia imposed curfews; Illinois entered Tier 3 and its Driver Services facilities closed again November 17; casinos were re-capped; the Coast Guard extended mariner credentials to October 31, 2021 (December 22); and the FFCRA mandate expired December 31.⁶⁴

CH: the fall foliage and holiday season ran into re-tightened caps, into the quarantine-on-arrival regimes of the Northeast and into curfews; school and athletic trips stopped where schools went remote and where winter sports were suspended (Pennsylvania December 12 to January 4; North Dakota November 16 to December 14; Nebraska's fan limits). SB: the routes that had restarted stopped again in Michigan's and Kentucky's high schools and New Mexico's reset, and every route that ran carried masked children under State rules. LM: the curfews of Ohio, North Carolina and Virginia and the ten-person residential caps removed the evening fare; the quarantine regimes removed the arriving traveler; the face-covering orders, the exposure controls placed on the ride, governed every ride. AV: SFAR 118-2 extended the airmen's deadlines to April 30, 2021; the Conditional Sailing Order and the proclamations fixed the international and cruise-charter markets. FR: winter schedules were held; Washington asked riders to limit ferry travel to essential trips over the holidays under the statewide restrictions. TA: the Conditional Sailing Order fixed that no cruise would sail before the conditions were met; the December quarantine orders of Pennsylvania, Connecticut, Maryland and Vermont made every holiday booking a quarantine. HR: Illinois's Driver Services facilities closed again; the FMCSA waiver as recited by the States was extended to February 28, 2021; the Coast Guard's credential extensions to October 31, 2021 record that the examination function had not been restored. WF and OP: the school and child-care regimes and the FFCRA mandate through December 31. CB: every counterparty remained under an order.

The operation of a typical employer in this industry was partially suspended during the fourth quarter of 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings.

The first quarter of 2021 (January 1 through March 31, 2021)

On January 1, 2021 the Connecticut, New York, Pennsylvania, New Hampshire, Vermont, Massachusetts, Maryland, District, Chicago, New Mexico, Hawaii, Alaska, Washington and Kansas quarantine regimes were all in force; the Conditional Sailing Order governed cruising; Proclamation 10143 (January 25) continued the entry suspensions and added South Africa; the CDC pre-departure testing order took effect January 26; the CDC conveyance order and the TSA directives took effect February 1, placing every bus, taxi, ride-share, ferry, school bus, aircraft and airport in the country under a federal face-covering requirement enforceable by refusal of boarding and removal, an airborne-transmission control with the operator as its enforcer; the Coast Guard restated the requirement for all commercial vessels (February 1) and every sea port (March 22); FRA Emergency Order No. 32 took effect March 1; DOT Order 2021-1-5 fixed minimum air service through March 31; SFAR 118-2 ran to April 30; the FMCSA waiver as recited by the States ran to February 28 and then May 31; the MBTA cut Commuter Rail service January 23.⁶⁵ By March 31, 2021, Connecticut (March 19), Massachusetts (March 22), New Hampshire (March 16, domestic), Pennsylvania (March 1), Alaska (February 14) and New Mexico (February 10) had repealed their quarantines and New York's domestic quarantine ended April 1, while Hawaii, Kansas, Chicago, Washington (to April 6), Vermont (to June 14, Ex. VT-082; Ex. VT-086), Maine (to June 30, Ex. ME-053; Ex. ME-060), the District (to May 21, Ex. DC-012; Ex. DC-050), New Hampshire's international and cruise rule (to May 7, Ex. NH-038) and Rhode Island (to July 6, 2021, Ex. RI-040; Ex. RI-043) continued; Texas (March 10), Mississippi (March 3), Arizona (March 25), Wyoming (March 16), Oklahoma (March 12) and Arkansas (February 26, with its face-covering directive to March 31) ended their general restrictions; gathering caps remained in about thirty States; school face-covering rules, infection-prevention conditions of in-person instruction, were statewide in most States; New York's county motor-vehicle offices remained appointment-only.⁶⁶

Every function acquired a federal condition on February 1, 2021: the driver, the chauffeur, the deckhand and the pilot became enforcers of a federal order on pain of the operator's exposure, and the unmasked passenger became a passenger the operator was required to refuse. CH: the winter and spring group calendar ran into caps in thirty States and into the Northeast quarantine regimes through March; interstate athletic and school trips were suspended by the sports orders of Pennsylvania, Utah and Nevada into February. SB: the routes ran on the rosters the hybrid and in-person orders allowed (Nevada's buses at sixty-six percent from February 18; New Hampshire's two days in person from March 8; Oregon's hybrid from March 29) under State and federal face-covering rules. LM: the airport fleets carried the traffic the DOT order, the testing order and the proclamations left; the conveyance order governed every ride. AV: the testing order and Proclamation 10143 governed every inbound charter; SFAR 118-2 ran to April 30; the airport directive governed every terminal. FR: the conveyance order and the Coast Guard's bulletins governed every vessel and terminal; the Canadian route stayed closed. TA: no cruise sailed; the proclamations and testing order governed every international sale; Hawaii's Safe Travels governed every Hawaii sale. HR: the FMCSA waiver as recited by the States, SFAR 118-2 and the Coast Guard's extensions ran because testing and examination had not been restored. WF and OP: the school regimes and the State workplace standards (Cal/OSHA from November 30, 2020; Virginia from January 27, 2021). CB: every counterparty remained under an order.

The operation of a typical employer in this industry was partially suspended during the first quarter of 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings. The quarter in which the federal government made a face covering a federal condition of carriage on every conveyance in the country, and every operator the enforcer of that airborne-transmission control, is not a quarter in which the industry that operates those conveyances was free of orders.

The second quarter of 2021 (April 1 through June 30, 2021)

On April 1, 2021 Hawaii's Safe Travels, Kansas's KDHE mandate, Chicago's order, Washington's variant-country quarantine (to April 6), Vermont's (to June 14, Ex. VT-082; Ex. VT-086), Maine's (to June 30, Ex. ME-053; Ex. ME-060), the District's (to May 21, Ex. DC-012; Ex. DC-050), New Hampshire's international and cruise rule (to May 7, Ex. NH-038) and Rhode Island's ten-day quarantine (to July 6, 2021, Ex. RI-040; Ex. RI-043) governed travelers; the federal conveyance order, the testing order, the Conditional Sailing Order, the proclamations (India added May 4) and the land borders governed the vehicles and the border; DOT Order 2021-4-13 bound the carriers from May 14 through September 30; SFAR 118-2 ran to April 30; FRA Emergency Order No. 32 governed the railroads; the Coast Guard's MSIB 13-20 Change 3 (April 21) and 02-20 Change 7 (May 5) governed the ports; the FMCSA waiver as recited by the States ran to May 31 and then August 31; gathering caps and the schools' infection-prevention rules (face coverings on every campus and bus) held in most States; motor-vehicle offices ran appointment regimes in New York, the District, Oregon and Massachusetts.⁶⁷ By June 30, 2021, the general restrictions had ended in the last large States (California June 15; New York June 15 and 25; Illinois June 11; Michigan June 22; Washington June 30; Oregon June 30; Minnesota June 30; New Mexico July 1; Rhode Island July 6; Delaware July 13), while the federal conveyance order as amended June 10 with SD 1582/84-21-01A, the Coast Guard's MSIB 02-21 Change 2 (June 11), FRA Emergency Order No. 32 as modified June 10, the Conditional Sailing Order with the first test voyages, the testing order, the proclamations and the borders remained, and the States that ended their general mandates kept the transit and for-hire face-covering requirement as an exposure control on the ride (California from June 15; Kentucky from June 11; New Jersey from May 28; Illinois from June 11; Washington from June 30; North Carolina to July 30; Rhode Island to July 6; Louisiana in every proclamation).⁶⁸

CH: the spring trip season of 2021 ran under caps in most States through May and under the federal conveyance order in all of them; the interstate tour ran into Hawaii's and Kansas's quarantines and into the vaccination-verified event rules that Washington and New York adopted in place of caps. SB: the routes ran on hybrid and in-person rosters to the end of the 2020-21 year under the States' infection-prevention rules for the ride (face coverings, and bus-capacity limits where retained, Nevada to April 30) and the federal order. LM: the conveyance order governed every ride; the airline network ran under DOT Order 2021-4-13 from May 14; the proclamations and testing order governed every arriving international passenger. AV: SFAR 118-2 to April 30; the testing order and proclamations; the airport directive; the DOT order on the fixed-base operator's airline customers. FR: the conveyance order on every vessel; the Canadian route closed; the Conditional Sailing Order's test voyages began in June. TA: no revenue cruise sailed from a United States port before the end of June; Proclamation 10199 closed India May 4; the land borders excluded tourism; the Hawaii regime governed every Hawaii sale. HR: the FMCSA waiver as recited by the States ran to August 31; the Coast Guard's credentials extensions to October 31; SFAR 118-2 to April 30. WF and OP: the State workplace standards (Cal/OSHA readopted June 17; Oregon OSHA May 4; Virginia); the school regimes to the end of the year. CB: every counterparty remained under an order.

The operation of a typical employer in this industry was partially suspended during the second quarter of 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings. The Service's premise that the second quarter of 2021 was a quarter without orders describes no industry, and it describes this one least of all: for the conveyances of this industry the federal order that governed them was amended, extended and ratified in that quarter, and the cruise, international and Hawaii products it sells were governed by orders that did not change.

The third quarter of 2021 (July 1 through September 30, 2021)

A. The premise the Service brings to this quarter

The Service's position on the third quarter of 2021 is that governmental orders had ended, that whatever remained was guidance, and that an employer in this industry claiming a suspension in that quarter is claiming a suspension caused by orders that, on the Service's account, had lifted before the quarter began. The record contradicts each element. On every day of the quarter a federal order made a face covering a condition of carriage on every bus, taxi, ride-share, ferry, school bus and aircraft in the United States and at every terminal, an airborne-transmission control that required the operator to refuse and remove the non-compliant passenger; a federal order closed every cruise ship to revenue passengers except under the Conditional Sailing Order's conditions; federal orders suspended entry from thirty-three countries and closed the land borders to tourism; the Department of Transportation fixed the airline network by order to the last day of the quarter; two States quarantined travelers on every day of it; and the 2021-22 school year, the industry's largest contract season, opened in August and September under orders that required face coverings on every bus, quarantined exposed children and conditioned drivers' employment on vaccination or testing. Congress re-enacted the Suspension Clause for this quarter with knowledge of these instruments and the Service administered it as a claimable quarter. The instruments are set out below by number, with their issuer, dates, operative clause, enforcement mechanism, status on July 1 and September 30, 2021, and the functions each reached. Nothing in this section rests on an instrument that had lapsed.

B. The instruments in force

B-1. The CDC conveyance order

Issuer: the Director, Centers for Disease Control and Prevention, under 42 U.S.C. § 264 and 42 C.F.R. §§ 70.2, 71.31(b) and 71.32(b). Dates: effective 11:59 p.m. February 1, 2021, "until further notice"; amended June 10, 2021 to exempt outdoor areas of conveyances; in force through the quarter and vacated only April 18, 2022. Operative clause: "persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States" and "at transportation hubs"; "[o]perators of conveyances must use best efforts to ensure that any person on the conveyance wears a mask when boarding, disembarking, and for the duration of travel," including by "[b]oarding only those persons who wear masks," "[d]isembarking any person who refuses to comply" and "[i]nstructing persons that Federal law requires wearing a mask." Scope: "aircraft, train, road vehicle (including rideshares), vessel ... or other means of transport," naming "buses," "taxis," "ride-shares," "ferries, ships" and "airports, bus terminals, marinas, seaports or other ports," and applied by the CDC to every school bus. Enforcement: 42 U.S.C. §§ 271 and 268 and 18 U.S.C. § 3559, with the TSA directives (B-2) supplying the operator-level sanction. Status: in force July 1 and September 30, 2021. Functions: CH, SB, LM, AV, FR, TA, HR, WF, OP, CB.⁶⁹

B-2. The TSA Security Directives

Issuer: the Administrator, Transportation Security Administration, under 49 U.S.C. § 114(l)(2), on the Secretary of Homeland Security's determination of January 27, 2021. Dates: SD 1582/84-21-01A, effective May 12, 2021, expiration September 13, 2021; SD 1582/84-21-01B, announced August 20, 2021, effective September 14, 2021, expiration January 18, 2022; the aircraft-operator and airport directives and the foreign-carrier emergency amendment (SD 1544-21-02, SD 1542-21-01 and Emergency Amendment EA 1546-21-01) with "-A" and "-B" successors on the same dates, ratified by the Transportation Security Oversight Board April 20, 2021. Operative clause: owner/operators of surface transportation, including fixed-route bus operators, aircraft operators and airports, "must" require masks, "including those already vaccinated," refuse boarding to and remove persons who will not comply, and post notice that federal law requires a mask. Enforcement: civil penalties under 49 U.S.C. § 114 and 49 C.F.R. part 1503. Status: in force July 1 and September 30, 2021; renewed inside the quarter. Functions: CH, LM, AV, OP.⁷⁰

B-3. The Conditional Sailing Order and its technical instructions

Issuer: the Director, CDC. Dates: October 30, 2020 "until the earliest of (1) the expiration of the Secretary of Health and Human Services' declaration that COVID-19 constitutes a public health emergency, (2) the CDC Director rescinds or modifies the order ..., or (3) November 1, 2021"; technical instructions of May 5, 2021; extended October 25, 2021 to January 15, 2022. Operative clause: no cruise ship carrying passengers may sail from a United States port except in compliance with the phased conditions (crew testing, simulated voyages, port agreements, CDC certification). Enforcement: 42 U.S.C. § 271; no-sail sanctions. Status: in force July 1 and September 30, 2021, enjoined as to Florida ports only from July 23, 2021, when the Eleventh Circuit's stay of the June 18, 2021 injunction was vacated, and in force everywhere else. Functions: TA, LM, FR, CB.⁷¹

B-4. The entry proclamations and the pre-departure testing order

Issuer: the President under 8 U.S.C. §§ 1182(f) and 1185(a); the Director, CDC. Dates: Proclamations 9984 and 9992 (China and Iran) from February 2 and March 2, 2020; Proclamation 10143 (Schengen, United Kingdom, Ireland, Brazil, South Africa) from January 26 and 30, 2021; Proclamation 10199 (India) from May 4, 2021; all revoked effective November 8, 2021; the testing order from January 26, 2021 to June 12, 2022. Operative clause: "[t]he entry into the United States, as immigrants or nonimmigrants, of noncitizens who were physically present within" the named areas in the preceding fourteen days "is hereby suspended"; every arriving air passenger "must" present a negative pre-departure test or documentation of recovery. Enforcement: exclusion at the port of entry; carrier refusal of boarding under 42 C.F.R. § 71.20. Status: in force July 1 and September 30, 2021. Functions: TA, LM, AV, CB.⁷²

B-5. The land-border notifications

Issuer: the Secretary of Homeland Security under 19 U.S.C. § 1318(b)(1)(C) and (b)(2). Dates: June 23, 2021 notifications, effective "at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021" until "11:59 p.m. EDT on July 21, 2021"; renewed July 22, August 23 and September 22, 2021; non-essential travel admitted for vaccinated travelers only from November 8, 2021. Operative clause: travel through the land ports of entry and ferry terminals along the Canadian and Mexican borders "shall be limited to 'essential travel,'" which "does not include travel for tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events)." Enforcement: refusal of entry by Customs and Border Protection. Status: in force July 1 and September 30, 2021. Functions: TA, CH (cross-border tours), FR (the Anacortes-Sidney and Great Lakes routes), LM, CB.⁷³

B-6. DOT Order 2021-4-13

Issuer: the Secretary of Transportation under ARPA § 7301 and Pub. L. 116-260 § 407. Dates: issued April 29, 2021; binding from May 14, 2021 "through September 30, 2021." Operative clause: each carrier receiving payroll support "shall" maintain scheduled service to the points in its baseline network at the frequencies the Order fixes, with exemptions only by application. Enforcement: 49 U.S.C. §§ 46301 and 46106; conditions of the payroll-support agreements. Status: in force July 1 through September 30, 2021, the quarter's last day. Functions: AV (the fixed-base operator's and air-charter operator's airline customers and airports), LM (the airport fleets' arrivals), OP.⁷⁴

B-7. FRA Emergency Order No. 32

Issuer: the Administrator, Federal Railroad Administration, under 49 U.S.C. § 20104. Dates: effective March 1, 2021; modified June 10, 2021; in force through the quarter. Operative clause: "Railroad carriers must require their personnel to wear a mask" in facilities and on trains, and must require passengers to do so, on pain of a "civil penalty of up to $118,826 for each day the violation continues." Enforcement: 49 U.S.C. § 21301. Status: in force July 1 and September 30, 2021. Functions: CH and LM (the intercity rail connections the charter and shuttle fleets serve), WF.⁷⁵

B-8. The Coast Guard's implementation of the conveyance order and its credentialing record

Issuer: the Commandant, under 46 U.S.C. §§ 70034 and 7507 and 33 C.F.R. § 160.216. Dates: MSIB 02-21 Change 2 (June 11, 2021) and Change 3 (September 2, 2021); MSIB 02-20 Change 7 (May 5, 2021); MSIB 08-20 Change 5 (December 22, 2020, credential extensions to October 31, 2021); MSIB 13-20 Change 3 (April 21, 2021, TWIC enforcement discretion to January 1, 2022). Operative content: the federal face-covering requirement applies on "all commercial vessels" and at every sea port and passenger terminal, with Captain of the Port order exposure for non-compliance; illness aboard is a hazardous condition that "must be reported immediately"; mariner credentials expiring in the period are extended because the examination centers had not restored full service. Status: the instruments the bulletins implement (B-1; 33 C.F.R. § 160.216; the Captain of the Port orders under 46 U.S.C. § 70034; the credential extensions under 46 U.S.C. § 7507) were in force July 1 and September 30, 2021, and Change 3 issued inside the quarter; the bulletins are cited as the Coast Guard's record of their operation and of the credentialing constraint, never as orders. Functions: FR, HR, TA.⁷⁶

B-9. Hawaii's proclamations and Safe Travels

Issuer: the Governor under Haw. Rev. Stat. ch. 127A; the Director of Emergency Management. Dates: Twenty-First Proclamation (June 7, 2021; in force July 1 to August 6, 2021); Emergency Proclamation Related to the COVID-19 Response (August 5, 2021; to October 4, 2021); Order for Self-Quarantine served on each arrival (ten-day version revised May 25, 2021), running past the period; EO 21-05 (August 10, 2021); EO 21-07 (September 13, 2021). Operative clauses: every person entering the State without a qualifying test or vaccination record "shall" self-quarantine for ten days, enforced by an order served at arrival with misdemeanor penalties; every person "shall" wear a face covering indoors; social gatherings limited to ten indoors and twenty-five outdoors and indoor capacity to fifty percent, professional events over fifty by approval; State and county employees vaccinated or tested from August 16; access to State property, including Harbors Division facilities, conditioned on vaccination or a negative test from September 13. Enforcement: Haw. Rev. Stat. § 127A-29 (misdemeanor). Status: in force July 1 and September 30, 2021. Functions: TA, CH, LM, FR, AV, SB, HR, WF, CB.⁷⁷

B-10. Kansas's KDHE travel and exposure quarantine mandate

Issuer: the Secretary, Kansas Department of Health and Environment, under K.S.A. 65-126 and 65-128. Dates: from March 2020, updated biweekly; the June 3 and September 23, 2021 updates in force through the quarter and to November 18, 2021. Operative clause: unvaccinated persons who have traveled to listed States or countries, attended gatherings of 500 or more, or been on a cruise "shall" quarantine at home for the stated period; close contacts quarantine. Enforcement: K.S.A. 65-129 (misdemeanor). Status: in force July 1 and September 30, 2021. Functions: TA, CH, LM, WF, CB.⁷⁸

B-11. Rhode Island's Student Transportation Order and its predecessors

Issuer: the Governor under R.I. Gen. Laws § 30-15-9. Dates: EO 21-68 (Reopening Order), which carried the ten-day traveler quarantine with test-out for arrivals from hot-spot States and abroad to July 6, 2021 (Ex. RI-043; Ex. RI-040), EO 21-69 (the face-covering order, an airborne-transmission control on the unvaccinated indoors and on everyone on all transit) and EO 21-75 in force July 1 to July 6, 2021; EO 21-26 quarantine-and-isolation order continued July 14 and August 12 to September 1, then EO 21-93, 21-94 and 21-100 (September 1, 2 and 30); EO 21-87 (August 19, 2021) universal indoor masking in every K-12 school (Ex. RI-055); EO 21-90 (August 26, 2021), extended by EO 21-98 (September 24, 2021). Operative clause of EO 21-90: R.I. Gen. Laws § 31-22-11.6(a)(2)(i)'s vehicle-type requirements are suspended so that the Department of Education's retained providers "may utilize: a. school buses ... b. pupil transportation vehicles ... c. school extra-curricular vehicles ... d. child care vehicles ... and e. family child care home vehicles" during the 2021-22 school-bus driver shortage. Enforcement: R.I. Gen. Laws § 30-15-15. Status: EO 21-90 issued and in force inside the quarter; the quarantine-and-isolation orders in force on every day of it; the traveler quarantine and the transit face-covering order to July 6. Functions: SB, HR, WF, CB, TA.⁷⁹

B-12. New York's school regulations

Issuer: the Commissioner of Health and the Public Health and Health Planning Council under Public Health Law §§ 225 and 2100. Dates: 10 NYCRR 2.60 and the Commissioner's Determination on Indoor Masking (August 27, 2021); 10 NYCRR 2.62 and 2.9 and the Commissioner's Determination on COVID-19 Testing (September 2, 2021, "effective immediately"); 10 NYCRR Subpart 66-3 (transit and school face coverings) readopted June 23, 2021 to August 27; 10 NYCRR 2.13 (isolation and quarantine) readopted May 28 and August 26, 2021. Operative clause of 2.62 and the Determination: unvaccinated "teachers, substitute teachers ... and support staff, including bus drivers," shall be tested weekly, a requirement that "also applies to contractors working in a P-12 school"; every school shall report cases daily under 2.9; every person in a school building shall wear a mask under 2.60. Enforcement: Public Health Law § 12 (civil penalties). Status: in force September 30, 2021; issued inside the quarter for the school year that opened inside it. Functions: SB, HR, WF, CB.⁸⁰

B-13. The school-worker vaccination-or-testing orders

Issuer and dates: California's State Public Health Officer (August 11, 2021; full compliance by October 15) (Ex. CA-033); Washington's Proclamation 21-14.1 (August 20, 2021; no Worker may "engage in work for the operator of an Educational Setting after October 18, 2021" unless fully vaccinated, reaching "contractors" and "volunteers") (Ex. WA-079); Oregon's OAR 333-019-1030 (August 25, 2021; vaccination by October 18, 2021 of "anyone who is not employed but is otherwise engaged to provide goods or services to or at a school") (Ex. OR-052); Illinois's EO 2021-20 and 2021-22 (August 26 and September 3, 2021) (Ex. IL-042; Ex. IL-043); New Mexico's Public Health Order of August 17, 2021 (compliance for school workers from August 23) (Ex. NM-068; Ex. NM-071); New Jersey's EO 253 (August 23, 2021; effective October 18) (Ex. NJ-057); Connecticut's EO 13D (August 19, 2021), superseded by EO 13G (September 10, 2021), requiring vaccination or weekly testing of school and child-care workers from September 27, 2021 (Ex. CT-054; Ex. CT-056); Hawaii's proclamation of August 5, 2021 (Ex. HI-024). Operative clause: every worker in a school setting, including contractors, is vaccinated or tested weekly by the stated date. Enforcement: each State's emergency act and health code. Status: each issued inside the quarter and binding by its terms on the school contractor's drivers, with compliance dates running from August 12 (California) to October 18 (Washington, Oregon, New Jersey). Functions: SB, HR, WF.⁸¹

B-14. The 2021-22 school infection-prevention orders (universal masking, exclusion and quarantine)

Issuer and dates: Illinois EO 2021-18 (August 4, 2021), with the State Superintendent's letter that it "has the force of law" and that "noncompliance is not an option" (Ex. IL-040; Ex. AGY-ST-EDUCATION-HIGHER-ED-032); Oregon OAR 333-019-1015 (August 2, 2021; $500-per-day penalties) (Ex. OR-045); Washington Proclamation 20-09.4 (July 30, 2021) (Ex. WA-075; Ex. WA-076, secondary); California's K-12 guidance mandatory from July 12, 2021 (Ex. CA-034); New Jersey EO 251 (August 9, 2021) (Ex. NJ-055); Kentucky EO 2021-585 and 702 KAR 1:195E (August 10-12, 2021) (Ex. KY-052; Ex. KY-053) (in force August 10 to September 9-10, 2021, when 2021 SS SB 1, Ex. KY-057, nullified the statewide rules and vested masking in district boards); Louisiana's 137 JBE 2021 (August 4, 2021) in every school (Ex. LA-036); Virginia's Order of Public Health Emergency Ten (August 12, 2021) (Ex. AGY-ST-EDUCATION-HIGHER-ED-029); Delaware's universal K-12 face coverings from August 16, 2021 (Ex. DE-044); Connecticut's DPH orders under EO 12A and 13A (Ex. CT-047; Ex. CT-052); Massachusetts's Commissioner's requirement from August 25, 2021 (Ex. MA-071); Pennsylvania's order of September 7, 2021 (Ex. PA-042); Rhode Island's EO 21-87 (August 19, 2021); New Mexico's orders (Ex. NM-060; Ex. NM-067; Ex. NM-070); Hawaii's DOE rules (Ex. HI-043; Ex. HI-044; Ex. HI-045; Ex. HI-047); the District's (Ex. DC-074; Ex. DC-076); Nevada's Directive 048 (Ex. NV-042); and the exposure-quarantine and exclusion orders of Texas (GA-38 ¶ 3.e, Ex. TX-036, under which the TEA protocols' mandatory exclusion operated, the protocols cited as the agency's record of the order's operation, as context), Florida (64DER21-12, Ex. FL-032), Arkansas (the Department of Health's exclusion and quarantine orders under Ark. Code Ann. § 20-7-110, Ex. AR-073, with the DESE-ADH 2021-22 guidance, Ex. AR-080, cited as the agencies' record of those orders' operation, as context), New Hampshire (the DHHS isolation and quarantine directives under RSA 141-C:11 and :15, Ex. NH-063; Ex. NH-064, with the School and Childcare Toolkit, Ex. NH-066, cited as the agency's record of those orders' operation, as context), South Carolina (Ex. SC-062), Indiana (the IDOH Control Measures given executive-order force from August 1, 2021 by EO 21-19, Ex. IN-092) and North Carolina (Ex. NC-072), with Ohio's local health departments' quarantine orders under Ohio Rev. Code ch. 3707 implementing the ODH K-12 guidance of August 31, 2021 (Ex. OH-084, context). Operative clauses: every person on school property and on school buses wears a mask; exposed students and staff are excluded for the stated period. Enforcement: each State's education and health codes. Status: in force September 30, 2021, except Kentucky's statewide school rules (nullified September 9-10, 2021 and replaced by district policies under Ex. KY-057); the Texas, Arkansas and New Hampshire entries are described by category as orders issued under the cited authority. Functions: SB, WF, CB.⁸²

B-15. The State transit and for-hire exposure-control requirements retained after the general mandates

The face-covering requirement each of these instruments kept on the ride is an exposure control on the carrier and the conveyance, retained after the States ended their general orders: California from June 15, 2021 on public transit and in hubs regardless of vaccination (Ex. CA-029; Ex. CA-035); Kentucky's EO 2021-386 ¶ 4, "public transportation, health-care and long-term-care settings," June 11 to September 7, 2021 (Ex. KY-049); New Jersey's EO 242 ¶ 13 (Ex. NJ-050); Illinois's Phase 5 order and its monthly re-issuances (Ex. IL-037; Ex. IL-039; Ex. IL-041; Ex. IL-044); Washington's Order 20-03.3 (June 30 to August 22) and 20-03.4 (from August 23) (Ex. WA-070; Ex. WA-078); North Carolina's EO 220 § 3.4 "on all public and private transportation, airports, bus and train stations" to July 30, 2021 (Ex. NC-030); Louisiana's 117, 131, 137, 167 and 181 JBE 2021 § 3(B) (Ex. LA-034; Ex. LA-035; Ex. LA-036; Ex. LA-038; Ex. LA-040); Rhode Island's EO 21-69 to July 6 (Ex. RI-044). MDOT MTA's notice that masks remained required "for the duration of your ride" under the federal order after Maryland's residual State face-covering order (Order 21-05-14-01, Ex. MD-030) was rescinded at 12:01 a.m. July 1, 2021 (Ex. MD-031 § I.a) is cited as the operator's record of the federal order's operation (Ex. AGY-ST-TRANSPORT-PORTS-TRANSIT-005), not as a State order; Massachusetts transit masking from May 29, 2021 ran under the federal conveyance order (B-1) as the MBTA implemented it. Status: each of the State instruments listed in force on July 1, 2021, and those of California, New Jersey, Illinois, Washington and Louisiana on September 30. Functions: LM, CH, SB.⁸³

B-16. The reinstated indoor face-covering, facility-access and vaccination-proof orders of July, August and September 2021

The indoor face-covering orders listed here are airborne-transmission controls reinstated on every indoor public setting and workplace in the issuing jurisdiction, and, where the instrument so provides (Louisiana's 137 JBE 2021 § 3(E), Oregon's OAR 333-019-1025(7), Washington's Proclamation 20-25.15 as applied to Order 20-03.4), a duty on the operator of the premises to require compliance: Louisiana statewide from August 4 (Ex. LA-036); Oregon statewide from August 13 (indoor) and August 27 (outdoor), made every employer's duty by Oregon OSHA (Ex. OR-048; Ex. OR-049); New Mexico statewide from August 20 (Ex. NM-067; Ex. NM-070); Washington universal from August 23 (Ex. WA-078; Ex. WA-080); Illinois universal from August 30 (Ex. IL-042); Nevada in substantial- and high-transmission counties from July 30 (Ex. NV-041); Hawaii throughout (Ex. HI-023; Ex. HI-024); the District from July 31 (Ex. DC-057); New York City's Key to NYC from August 17 (Ex. MET-NYC-017); San Francisco's vaccination proof from August 20 (Ex. MET-SFO-011); New Orleans from August 16 (Ex. MET-MSY-029); Honolulu's Safe Access from September 13 (Ex. MET-HNL-035); Chicago from August 20 (Ex. MET-CHI-026); Cook County from August 23; Baltimore from August 10 (Ex. MET-BAL-017); Cuyahoga County from August 3 in county buildings and facilities (Ex. MET-CLE-009); Columbus from September 10-14 (Ex. MET-CMH-048; Ex. MET-CMH-050); St. Louis City from July 26 through the quarter (Ex. MET-STL-021; Ex. MET-STL-022) and St. Louis County from July 26, restrained August 3 and enjoined from August 20, 2021 (Ex. MET-STL-069; Ex. MET-STL-091; Ex. MET-STL-093, secondary); Kansas City from August 2 by Order 21-01, replaced August 19 by Ordinance 210694 (Ex. MET-KC-002), and Jackson County from August 9 (Ex. MET-KC-045); Dallas County from August 11 (Ex. MET-DFW-028) and Harris County from August 17 in county buildings (Ex. MET-HOU-039); San Antonio from August 11 (Ex. MET-SAT-068); Savannah from July 26 (Ex. MET-ATL-016); Boulder County from September 3 (Ex. MET-DEN-033); Salt Lake City from July 28 in city buildings and vehicles (Ex. MET-SLC-029); Pasadena's mega-event rule from September 15 (Ex. MET-LA-056); Metro's Portland'5 venues by a rule announced August 19, 2021 (start date not stated in the exhibit) (Ex. MET-PDX-017). King County's Verification of Vaccination Order was issued September 16, 2021 for an October 25, 2021 effective date (Ex. MET-SEA-001); it is cited only as a September 2021 statement of the emergency and is not relied on as in force in the quarter. Enforcement: each issuer's emergency or health code (civil penalties; closure orders). Status: none in force on July 1, 2021; each in force from its stated date; all but Savannah's (to August 25, 2021), St. Louis County's (enjoined from August 20, 2021) and King County's (effective October 25, 2021, after the quarter) in force on September 30, 2021. Functions: CH (every venue the charter serves), LM, TA, CB.⁸⁴

B-17. The continuing State emergency and regulatory instruments

The emergency declarations in force on July 1, 2021 in thirty-five jurisdictions and on September 21, 2021 in twenty-five (Ex. LAW-246; Ex. LAW-247), including Alaska (Ex. AK-030), Arizona (Ex. AZ-001; Ex. AZ-037 to September 29, 2021), Arkansas (Ex. AR-017), California (Ex. CA-001; Ex. CA-028), Colorado (Ex. CO-043 chain), Connecticut (Ex. CT-048), Georgia (Ex. GA-041 chain), Illinois (Ex. IL-046; Ex. IL-047), Indiana (Ex. IN-065 chain), Iowa (Ex. IA-039 chain), Kentucky (Ex. KY-001; Ex. KY-056), Louisiana (Ex. LA-034 chain), Maryland to August 15 (Ex. MD-031), Massachusetts (Ex. MA-049), Missouri to August 27 and the staffing emergency after (Ex. MO-018; Ex. MO-020), Nevada (Ex. NV-001; Directive 046 of July 20, 2021 continuing the health-care licensing waivers, Ex. NV-040), New Jersey (Ex. NJ-052; Ex. NJ-053), New Mexico (Ex. NM-058 chain), New York's eviction moratorium, North Carolina (Ex. NC-001; Ex. NC-065), Oregon (Ex. OR-043), Pennsylvania's Act 21 and Act 73 regulatory suspensions (Ex. PA-040; Ex. PA-043), Rhode Island (Ex. RI-048 chain), Tennessee (Ex. TN-033 to Ex. TN-038), Texas (Ex. TX-001; Ex. TX-038), Utah (Ex. UT-025), Washington (Ex. WA-001), West Virginia (Ex. WV-001) and Wyoming (Ex. WY-001; Ex. WY-002); the State workplace standards of California (Ex. CA-024), Oregon (Ex. OR-044) and Virginia (Ex. VA-037; Ex. VA-038); Michigan's 2020 PA 238 (Ex. MI-057); the credential and regulatory suspensions running through the quarter (California's commercial-credential extensions to November 30, 2021 under the FMCSA waiver chain as the DMV implemented it (the waiver of August 2021 to November 30, 2021, described by category; its text is not held in the Library), recorded in the DMV's release of September 2, 2021, Ex. AGY-ST-DMV-SOS-RECORDERS-017, cited as the agency's record; Maryland's to August 15, Ex. MD-031; Massachusetts's remote notarization to December 15, 2021, Ex. AGY-ST-DMV-SOS-RECORDERS-040; Texas's notary suspension, Ex. AGY-ST-DMV-SOS-RECORDERS-044; Georgia's DDS examiner rules, Ex. GA-042; Ex. GA-061; West Virginia's inspection suspension to October 1, Ex. WV-007; Ex. WV-067 (EO 23-21, issued July 20, 2021, terminating the suspension effective October 1, 2021); the Coast Guard's credential extensions under 46 U.S.C. § 7507 to October 31, recorded in Ex. AGY-USCG-PORTS-028). These are cited for what they are: the emergency declarations as the record that every issuing government treated the emergency as continuing on every day of the quarter, and the regulatory suspensions as orders that governed the industry's compliance functions. Status: each declaration and suspension listed in force on July 1, 2021 and, save Maryland's (to August 15), Missouri's general emergency (to August 27) and Arizona's EO 2021-06 (to September 29), on September 30, 2021.⁸⁵

C. How the instruments reached the functions

CH, charter, tour and group service. On every day of the quarter the coach was a "conveyance" under B-1 and, where the operator ran fixed routes, a "fixed route bus" operator under B-2: the driver was required by federal law to refuse the unmasked passenger and to disembark the passenger who removed a mask en route, and the operator was exposed to civil penalty for failing to do so. Every cross-border tour was barred by B-5 as "tourism"; every Hawaii tour ran into B-9's quarantine and gathering caps; every Kansas-connected tour into B-10; every tour to a New York City, San Francisco, New Orleans, Honolulu or Portland venue from mid-August into a vaccination-proof condition of entry under B-16; every casino run into the face-covering and vaccination-proof rules of Nevada's Directives 047, 048 and 050 and Gaming Control Board Industry Notice 2021-71 (Ex. NV-041; Ex. NV-042; Ex. NV-044; Ex. NV-051). The school and athletic trip season of September 2021 opened under B-14's bus face-covering and quarantine rules and, in Illinois, Washington, Oregon, California, New Mexico and New York, under B-13's and B-12's driver-testing and vaccination conditions.

SB, school and contract routes. The 2021-22 school year is the quarter's decisive fact for this function. Every school bus in the country was a "school bus" named in B-1; every driver was an operator required to enforce it. In New York, the contractor's drivers were named ("support staff, including bus drivers") and its status as a contractor was named ("also applies to contractors working in a P-12 school") in B-12, effective September 2, 2021. In Washington, Oregon, California, Illinois, New Mexico, New Jersey and Connecticut, B-13 conditioned the contractor's drivers' continued work on vaccination or weekly testing by dates from August 12 to October 18, 2021. In Rhode Island, the Governor suspended the vehicle-type statute on August 26, 2021 because the routes could not be staffed with the vehicles the statute required, an order that exists only because the function was suspended in part. In every State with a 2021-22 school face-covering order (B-14), the route ran under that order; in every State with an exposure-quarantine rule, exposed children and drivers were excluded for the stated period. A school-bus contractor operating on September 30, 2021 was operating under more federal and State orders directed at its vehicles and its drivers than on any day of the 2019-20 year before March 2020.

LM, limousine, taxi, shuttle and airport service. Every taxi and ride-share was a "road vehicle (including rideshares)" under B-1; the driver refused the unmasked fare by federal command. The airport fleets carried the arrivals that B-4 (the proclamations and testing order) and B-6 (the DOT network order) defined; the cruise-transfer fleets carried the passengers B-3 permitted, none from a United States port before late June 2021 and a fraction of 2019 thereafter; the State transit and for-hire requirements of B-15 governed the ride in California, Illinois, New Jersey, Washington, Kentucky, Louisiana, North Carolina and Rhode Island in addition to the federal order; the vaccination-proof orders of B-16 governed the destination.

AV, air charter, fixed-base operations and flight training. Every aircraft and airport was under B-1 and B-2; every inbound charter under B-4; every airline customer of the fixed-base operator under B-6 through the last day of the quarter; every international student and passenger under B-4 and B-5. The flight school's medical and checking cycles had returned to the regulatory calendar only on April 30, 2021, with the backlog SFAR 118-2 records; the DOT's contractor directive of September 17, 2021 (Ex. AGY-AVIATION-SURFACE-040) reached the operators holding federal contracts.

FR, ferries and water passenger service. Every vessel was under B-1 as restated by B-8 for "all commercial vessels" and every terminal as a "seaport" or "marina"; the Coast Guard's Change 3 of September 2, 2021 restated the requirement inside the quarter; the Anacortes-Sidney route stayed closed under B-5; the Hatteras-Ocracoke service was cut from sixty to forty-four round trips on September 3, 2021 with masks "regardless of vaccination status" (Ex. AGY-ST-TRANSPORT-PORTS-TRANSIT-054, NCDOT's service notice, cited as the operator's record of the federal conveyance order it enforced); Alaska's Marine Highway carried on its cruise-connected routes only the passengers the Conditional Sailing Order permitted the cruise lines to land, with Juneau's ordinance (the State's principal cruise port) on the terminal side; Hawaii's Harbors Division facilities came under EO 21-07's vaccination-or-test condition September 13, 2021.

TA, travel agencies and tour operators. The cruise product was governed by B-3 on every day; the European, British, Irish, Brazilian, South African, Indian, Chinese and Iranian inbound and outbound products by B-4; the Canadian and Mexican land products by B-5; the Hawaii product by B-9 on every day; the Kansas-connected product by B-10; the corporate product by the restoration arithmetic of the interconnected-economy section below: the federal offices the black-car and shuttle fleets serve reopened only at the pace the Office of Management and Budget's lifting of the occupancy cap on June 10, 2021 permitted (Ex. FED-271), and the corporate traveler returned at that pace, with the Department of Transportation's contractor directive of September 17, 2021 (Ex. AGY-AVIATION-SURFACE-040) as the quarter's federal statement that the emergency continued; the group product by B-16's venue conditions. The European Union's removal of the United States from its safe list on August 30, 2021 (Ex. FOR-014) is context for the same quarter, never cited as an order.

MT, maintenance, yards and terminals. The yard was a workplace under the Cal/OSHA, Oregon OSHA and Virginia standards (B-17) and under the indoor face-covering orders of B-16; the fleet's compliance calendar ran through the credential and inspection suspensions of B-17.

HR, credentialing. The FMCSA waiver chain as recited by the States ran to August 31 and then November 30, 2021 (the DMV's release, Ex. AGY-ST-DMV-SOS-RECORDERS-017, as the record); the Coast Guard's credentials extensions to October 31, 2021 (B-8); New York's bus-driver testing (B-12) and the seven States' vaccination-or-testing orders (B-13) added a credential of a new kind to the hiring of every school-route driver in those States.

WF and OP, workforce and offices. The quarantine orders of B-10, B-11, B-12 and B-14 and the county and State quarantine directives (Ex. IN-092; Ex. MET-SAN-024; Ex. WI-039; Ohio's local health department quarantine orders under the ODH guidance, Ex. OH-084, as context) removed exposed drivers for ten to fourteen days; the school face-covering and exposure rules governed the workforce's children; the reinstated indoor face-covering orders of B-16 governed every dispatch office in Louisiana, Oregon, New Mexico, Washington, Illinois, Nevada, Hawaii, the District and the listed counties and cities.

CB, the customer base. Every counterparty class remained under an order on every day of the quarter: the school district under B-12 through B-14; the group customer under B-16 and B-9; the traveler under B-4, B-5, B-9 and B-10; the cruise line under B-3; the airline under B-1, B-2 and B-6; the inbound foreign group under B-4 and B-5.

D. The continuing suspension

An operation suspended in part by orders in force on the first day of a quarter is suspended in part "during the calendar quarter" whether or not the orders end inside it, and the Notice's own rule makes an employer suspended "during a portion of a calendar quarter ... an eligible employer for the entire calendar quarter."⁸⁶ The principal instruments above ran past September 30, 2021. For the instruments that ended inside the quarter the result is the same, on the Notice's own rule: the transit exposure-control orders (face coverings on the ride) of Rhode Island ran to July 6, 2021, of North Carolina to July 30 and of Kentucky to September 7; Maryland's emergency to August 15; Delaware's school and health-care orders to July 13; Arizona's EO 2021-06 to September 29; Missouri's emergency to August 27; the CDC eviction moratorium to July 31 and August 26. Each was in force on days of the quarter, and Q&A-22 makes each a quarter-long suspension for the employer it reached.

The arithmetic of restoration

The orders themselves fix the pace at which the suspended functions could resume, and the Service's premise that resumption was immediate is contradicted by the orders' own phase steps. The Conditional Sailing Order permitted the first simulated voyages in June 2021 and the first restricted revenue voyages thereafter, and required port agreements and CDC certification ship by ship; the cruise-transfer fleet that carried passengers from a port in September 2021 carried the passengers of the ships that had completed that sequence, a fraction of the 2019 count, under an order that ran to November 1, 2021.⁸⁷ DOT Order 2021-4-13 fixed the airline network at the frequencies the Order allowed through September 30; the airport fleet carried the arrivals that network produced.⁸⁸ Hawaii's Safe Travels admitted without quarantine only the tested or vaccinated traveler through the quarter and beyond; the Hawaii tour product recovered at the pace the program allowed. The land borders admitted no tourist on any day of the quarter; the cross-border tour product recovered at a pace of zero until November 8, 2021. The 2021-22 school year opened in August and September under the face-covering, quarantine and testing orders; the school-route function resumed at the roster and staffing the orders allowed, with the driver-shortage orders of Rhode Island and the driver-testing orders of New York and seven States recording that the function could not be staffed at the level the routes required. Each of these is a phase step written by the order's issuer; none is an inference from demand.

The instruments still in force at the close

On September 30, 2021 the following were in force by their terms: B-1 (to April 18, 2022); B-2 (SD 1582/84-21-01B to January 18, 2022); B-3 (to November 1, 2021, extended October 25 to January 15, 2022); B-4 (proclamations to November 8, 2021; testing order to June 12, 2022); B-5 (to November 8, 2021 for vaccinated travelers, later for others); B-6 (expiring at the day's end); B-7; B-8 (the conveyance order as enforced at every port, Change 3 recording it from September 2; credentials to October 31); B-9 (face coverings and Safe Travels past the period; caps to December 1, 2021); B-10 (to November 18, 2021); B-11 (EO 21-98 to October 23, 2021 and beyond; the quarantine orders continuing); B-12 (through the school year); B-13 (compliance dates October 15 and 18, 2021); B-14 (through the school year); B-15 (California, New Jersey, Illinois, Washington, Louisiana); B-16 (every listed order in force on September 30 save Savannah's, which ran to August 25 and was replaced, and St. Louis County's, enjoined from August 20; King County's, issued September 16 for October 25, is not claimed as in force); B-17 (the declarations and suspensions listed).⁸⁹

E. The Service's grounds, answered for this quarter

The orders had ended

The orders had lifted before the quarter began; any effect was a lingering effect.

What remained was guidance

The instruments relied on are guidance, recommendations or best practices, not orders.

Masks are nominal

The required modifications (masks, gloves, spacing, screening) had only a nominal effect on operations.

A reduction in demand

The orders affected the employer's customers, not the employer.

The employer was essential

The employer operated an essential business and remained open.

F. The finding

The operation of a typical employer in passenger transportation and travel services was partially suspended during the third quarter of 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings: the federal conveyance order and its enforcement directives on every vehicle and terminal; the Conditional Sailing Order on every cruise product; the entry proclamations, testing order and land-border notifications on every inbound and cross-border product; DOT Order 2021-4-13 on the airline network; Hawaii's and Kansas's quarantines on every day; and the 2021-22 school-transportation regime of infection-prevention controls (face coverings, quarantine, driver testing and vaccination) in the largest States. Each element of the Suspension Clause is satisfied on the instruments' own texts, the causation is but-for on Tri-State's holding, and the Notice's favorable rules (Q&A-10, Q&A-15, Q&A-17, Q&A-18, Q&A-19, Q&A-20, Q&A-22) bind the Service to the same result. The Service's description of this quarter describes a quarter that did not occur.

What this analysis does not claim was in force

The spring 2020 school closure orders and the 2020-21 remote and hybrid orders had ended by June 2021 and are not relied on for this quarter. The traveler quarantines of every State other than Hawaii, Kansas and Rhode Island had ended between February 14 and June 30, 2021 (Vermont June 14, New York June 25, Maine June 30; Chicago's became an advisory June 29, 2021) and are not relied on for this quarter; Rhode Island's ten-day quarantine under EO 21-68 (Ex. RI-043) ran to July 6, 2021 and is relied on for that period. The No Sail Order was superseded October 30, 2020. SFAR 118 and its successors expired April 30, 2021. The FFCRA mandate expired December 31, 2020. TSA SD 1582/84-21-01 was superseded May 12, 2021 by -01A, which is the instrument relied on to September 13 with -01B thereafter. New Jersey's fifty-percent carrier cap ended July 15, 2020; New York City's pooled-ride ban is relied on for 2020 only; New York's EO 202.18 was rescinded June 25, 2021 and the transit face-covering requirement is relied on for this quarter under 10 NYCRR 66-3 to August 27 and under the federal order throughout; Connecticut's EO 7BB and 7NNN ended May 20, 2021; Massachusetts's Orders 31, 55 and 67 were rescinded May 29, 2021 and Massachusetts transit masking from May 29, 2021 is relied on under the federal conveyance order (Ex. FED-020) and the TSA directive (Ex. FED-051) as the MBTA implemented them; Colorado's D 2020 138 chain expired June 1, 2021; Indiana's EO 20-37 ended April 6, 2021; Wisconsin's Emergency Order 1 ended March 31, 2021; Ohio's July 23, 2020 order ended June 2, 2021; Delaware's Thirteenth Modification face-covering requirements ended May 21, 2021; Maryland's transit and school-bus face-covering order (Order 21-05-14-01, Ex. MD-030) was rescinded at 12:01 a.m. July 1, 2021 (Ex. MD-031); Vermont's Addendum 12 ended June 14, 2021. Nevada's sixty-six percent bus rule ended April 30, 2021; Louisiana's BESE standards expired June 30, 2021; the 2020-21 bus face-covering rules of Indiana, Utah, Minnesota, South Carolina and Delaware ended with that school year; Rhode Island's EO 20-76, 20-85, 20-96 and 21-02 were succeeded by EO 21-90. The motor-vehicle office closures and appointment regimes other than the District's (to July 19-20, 2021) had ended; Texas's title and registration waiver ended April 14, 2021. Every statewide gathering cap other than Hawaii's had ended by July 6, 2021 (Rhode Island last). The casino closures and capacity orders had ended by July 1, 2021 and the convention-center closures by July 2021 (Chicago) and September 3, 2021 (Boston, relied on to that date). The labor-market entry proclamations expired March 31, 2021; the USCIS closure ended June 4, 2020; the visa suspension entered phased resumption July 15, 2020 and is relied on thereafter only as the backlog it produced. Executive Orders 14042 and 14043 and the DOT contractor directive imposed no obligation before October 15, 2021 and are cited only as September 2021 federal statements of the emergency. King County's Verification of Vaccination Order (Ex. MET-SEA-001) was issued September 16, 2021 with an entry requirement effective October 25, 2021, and is cited only as a September 2021 statement of the emergency, never as an order in force in the quarter; the MTA's employee vaccination-or-testing program is recorded in a post-period release (Ex. AGY-AVIATION-SURFACE-082) and is not relied on for this quarter. The federal conveyance order's June 10, 2021 amendment is relied on as recited in the Coast Guard's and FRA's instruments. The Florida injunction against the Conditional Sailing Order is relied on for what it did: it enjoined the Order as to Florida ports from July 23, 2021 and left it in force everywhere else.